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July 27, 2003 Page 6 the Council. Under Minn. Stat. ~ 317.A.521, subd. 6(a)(5), incorporated into Code ~ 105, a person seeking reimbursement could merely delay making the request and thereby go directly to court versus the council. That would take the discretionary decision making ability away from the governing body. It can hardly be said that such an ordinance provision is in furtherance or aid of the criminal reimbursement statute. It could even be reasonably argued that Chapter 105 seeks to undercut and evisorate the provisions of ~ 465.76. This would appear to pose an irreconcilable conflict, and may in fact be invalid due to that. 5 In light of this potential conflict, it is our opinion that procedurally and substantively the Council should follow the procedure set forth in Minn. Stat. ~ 465.76 at any point where that conflicts with the procedure set forth in Minn. Stat. ~ 317 A.521. c. Procedure for Seeking Reimbursement Minn. Stat. ~ 465.76 sets forth a number of factors that must be present for there to be reimbursement. First, reimbursement must be requested by the officer or the employee. Id. Second, there must be consultation with legal counsel. Id. Third, the reimbursement is only for reasonable attorney's fees and costs. Fourth, the reimbursement must be due to charges of a criminal nature that arose out of the "reasonable and lawful performance of duties for the City." Fifth, the decision on reimbursement is to be made only by disinterested members of the governing body. Sixth, even if all factors of the statute are met, a municipality is not required to make reimbursement and can choose to grant or refuse such a request. Seventh, the statutory section only uses the word "reimbursement" and does not use the word indemnify. 6 The fact that Minn. Stat. ~ 465.76 only uses the word reimbursement and not such words as defend or indemnify implies that the payment has to be made to the officer or employee, and not the attorney, reimbursing him for expenses that he has actually paid. For the same reason, it also appears that payment is not to be made until after the matter has been concluded. Finally, it bears noting that the phrase "reasonable and lawful performance of duties" does not necessarily mean that such reimbursement can occur only when the person seeking reimbursement was acquitted, or at least not convicted, of the criminal charges. In Kroschel v. City of Afton, 512 N.W.2d 351 (Minn. App. 1994), the Court of Appeals construed the criminal defense reimbursement statute to include, within its reach, defense of allegations of violation of the Open Meeting Law. In that case, the Court of Appeals specifically disagreed 5 Discretionary decisions of municipalities are protected and given limited court review. For instance, while Minn. Stat. Ch. 586 allows a person to bring a writ of mandamus to court to compel the performance of an act by a municipality, it does not lie to control discretion. Mandamus does not lie to control discretion or to review the exercise of discretion, even though it may have been erroneously exercised. See Zion Evangelical Lutheran Church v. City of Detroit Lakes, 21 N.W.2d 203 (1946); Rose v. Town of Greenwood, 20 N.W.2d 345 (1945). Discretion in this sense means the power or right of an official to act according to what, in that official's mind, appears best and appropriate under the circumstances. 6 By way of contrast, Minn. Stat. S 466.07 requires all municipalities to defend and indemnify officers and employees in actions seeking damages against the officer or employee, provided that the officer or employee was acting in the performance of the duties of the position and was not guilty of malfeasance in office, willful neglect of duty, or bad faith.